Shining a bright light into the dark corners of the shadow-world of literary scams, schemes, and pitfalls. Also providing advice for writers, industry news and commentary, and a focus on the weird and wacky things that happen at the fringes of the publishing world.

Why should we worry about orphan works? A good summary of the importance of this issue is provided by former US Register of Copyrights, MaryBeth Peters:

The problem is pervasive. Our study recounts the challenges that
publishers, film makers, museums, libraries, universities, and private
citizens, among others, have had in managing risk and liability when a
copyright owner cannot be identified or located. In testimony before
the Senate, a filmmaker spoke of the historically significant images
that are removed from documentaries and never reach the public because
ownership cannot be determined. In testimony before the House, the
U.S. Holocaust Museum spoke of the millions of pages of archival
documents, photographs, oral histories, and reels of film that it and
other museums cannot publish or digitize.

The problem has been created, in part, by the changing provisions of copyright. Copyright used to be dependent upon rightsholders' obligation to register their works; if works weren't timely registered or re-registered, they fell into the public domain. Now protection is automatic, with no need for registration, and the term of copyright has been extended far beyond authors' lifetimes. The unintended result is a huge pool of orphan works--whose rights no one is managing, and whose content no one can use. (How huge? It's estimated that in Europe alone, over 3 million books--13% of all in-copyright books--are orphans.)

Many people feel that legislation is the answer--both to create a legal definition of orphan works and to reduce the liability of those who want to use them. But the most recent legislation proposed in the USA failed to pass, and the EU's proposed directive on orphan works is still being debated.

Now France has taken action--and its new law, passed last week, is a jaw-dropper. It empowers the Bibliothèque Nationale de France to create "a freely accessible online database" of all works--not just orphans--published in France before 2001 that are currently out of print. Once a book has been listed in the database for more than six months, the right to "authorize its reproduction and display in digital form" transfers to a collective management organization, which thereafter has the power to exploit those rights, including selling the works and distributing a portion of the proceeds to the rightsholders. To be removed from the database, rightsholders must opt out in writing before the six-month waiting period expires. If a rightsholder misses the six-month deadline, s/he can only demand removal by proving that s/he is the sole holder of digital rights (good luck with that, if you have a pre-digital contract) or by arguing that the work's "reproduction or display [is] prejudicial to his honour or reputation."

If you stalled out in the middle of that long paragraph, here's the short version: any book published in France--which would include translated foreign-language books--that went out of print in France--not necessarily elsewhere--before 2001, can be scanned into a database. If authors--who may or may not be notified of their inclusion--do not opt out within six months, they lose control of the digital display and sale of their work.

This is a rights transfer on a massive scale that makes the Google Book Settlement look benign. By including any out of print book--not just those whose rightsholders can't be located--it goes far beyond the issue of orphan works. By forcing authors to opt out in order to regain control of their work, it turns copyright law on its head. The problem of orphan works urgently needs solution--but not via measures like this.

For my more wonky readers: what I've noted above is just the start. There's much more to object to in the new law--see this long blog post from Gillian Spraggs of Action on Authors' Rights for a detailed summary.

One interesting apparent feature of the law: the opportunity it potentially affords publishers to get around the difficulties of claiming the digital rights to books with pre-digital contracts. For any work in the database whose author doesn't opt out within the six-month window, the collective management organization is empowered to offer digital rights to the publisher that holds the print rights. As Gillian Spraggs comments, "what this legislation has achieved is to hand the publisher of the print
edition the digital rights to any out-of-print twentieth-century French
book that they think might make them money in a digital edition."

And--oh yes--if authors who didn't realize their works were included in the database discover this only after a publishing deal has been brokered, they are out of luck. Spraggs writes, "If an author misses the six months' window to reclaim a book, then even
if he/she subsequently proves ownership of the rights (and that may well
be a difficult process), then it will most likely still remain subject
to the terms of a contract negotiated by the collecting society. That
contract (if exclusive) will then become non-exclusive, but it will
still last for up to five years."

Shocking.

17 comments
:

We're so desperate for global copyright reform. The continuous extension of copyright for large commercial entities (i.e., Disney) combined with completely counter-productive software patents and artist-last approaches have completely turned the important idea of IP into something that hinders innovation and artistic expression. This is dire news indeed.

(Only) one of my concerns about the US Orphan works debates is how often they conflate "out of print" with "orphan" (owner can't possibly be located) and with "totally unavailable to readers" (no used copies for sale, no copies in libraries). The day may come when US authors of OP books who own the copyrights would be advised to publish a little print-on-demand or digital edition just to maintain control over those rights for future use.

London, if the extension of US copyright law (which benefits authors as well as businesses) were inhibiting freedom of expression, we wouldn't have the staggering number of books that are published every year, and more of them every year. The Sonny Bono Act was passed in 1998 and artistic output has actually increased.

Copyright terms are now ridiculously long. "Life of author + 18 years" or 50 years for corporate works would be more than fair to creators.

I suggest "life of author + 18 years" because it would allow a dead author's copyrights to benefit their children until they reach adulthood.

One advantage of shorter copyright terms is that, because fewer works would be protected by copyright, there'd be more legal resources available to focus on the remaining, protected works.

Fair Use should also be expanded -- and clarified -- for that reason.

Taking EXCERTS (as opposed to the whole thing), even from song lyrics and poems, should be recognized as Fair Use, the RIAA be damned.

The MPAA and RIAA steal from artists -- EVERYONE in Hollywood says get your money up front, because no film ever earns "net profits" -- then they claim they need copyright extension in order to benefit the artists.

I really applaud the French for taking on the orphan works problem, though 2001 is an odd cutoff! But that stuff about offering rights to publishers makes me think some large companies are behind it, trying to do a rights-grab.

As far as I can tell, the French copyright term is identical to what it was. This act merely forces publishers and authors to keep actively distribute for the rest of the copyright term, whether in print or e-editions, while giving control and assigning revenues to publishers and a collecting society, rather than to the authors.

I am alarmed at the heavyhanded approach the French law has taken on the challenge of the "orphan books" issue. This is not just a country specific problem, it is a global issue and the authors, publishers and those involved specifically in this problem should be the ones to gather at a summit or some other focus meeting to resolve the issue of the inifinte reach of the internet. At the bottom of this, like so many other corporate problems, is obviously the money to be made off access to these books. Shame on those who look at literature with dollar signs in their eyes that are undeserved. Authors have been named when they created these works originally and they should always be acknowledged as the "owners" of these works, not tossed aside because they have changed their address or choose to be out of contact.

Is the Google project somehow connected with this law? It costs a lot of money and time to produce the many thousands of e-books that large French publishers have likely put out of print in past decades. Ordinarily, those publishers would be devoting that money and time to publishing brand-new books they hope will sell well in the current market. They’ve got a very tight deadline for reviving decades of older books. But then, assuming Google has already scanned many of those books, did Google offer the French publishers the scans to ease this task? And if so, what does Google expect in return?

Sure, take away people's inheritance after only eighteen years. Provided, of course, this applies to all property, not just IP. I look forward to the houses down the street being available for me to exploit in a few years. Not to mention all the farmland around here.

What is it about the work writers and artists do that makes people think it belongs to everyone? We don't go to SmithKlineBeecham and say that's ours.

BuffySquirrel: actually, it already applies to other property. You can already use adverse possession to gain ownership of an abandoned house—which makes copyright law even stronger than real property law.

So because there's one section of law that provides for taking over an abandoned physical property, that should make all IP fair game?

Not feeling it, really. In any case, who says these so-say orphan works have been abandoned? Just because the publishers aren't having copies printed? The publishers aren't the copyright owners. It's a bit like saying it's okay to take someone's house because the maintenance man hasn't been around lately.

"Out of print" does not mean abandoned. Many authors may not have bothered to revert their rights after their books fell out of print (it's only recently, in fact, that there's been a substantial incentive to do so, with the growth of self-publishing options)--but that doesn't mean the authors have abandoned their books or have become unfindable.

The problem with this law is that it applies not just to orphan works, but to any book that fell out of print before 2001. There will certainly be many orphans among that number--but I am guessing there will be even more books whose authors are still ready and able to manage their rights.

I signed up for and received an update message from Gillian Spraggs. On further research: No royalties will be paid to authors until (a) the cost of digitization is recouped (b) the collection society takes its cut for operating costs and (c) the publisher gets their cut.

If this is going to be the trend for the book publishing industry, I think the only salvation authors have are in the hands of their readers. No support from readers means companies who jump into this kind of bandwagon will eventually die. It's time authors earned from their craft.

Three free software associations warned about it in November 2011, in English and French: 2011-11-14 • The French Senate proposes to legalize piracy of the French 20th century printed heritage http://aful.org/sections/communiques/french-senate-proposes-to-legalize-piracy-french-20thThey were also, afaik, the only organizations to propose amendments supported by some members of parliament in defence of authors rights.